Hettigoda Industries v Wijesurendra
HETTIGODA INDUSTRIESvWIJESURENDRASUPREME COURTS.N. SILVA, CJ.YAPA, J. ANDJAYASINGHE, J.S.C.51/2002H.C.LT A NO.1599/9828 JULY, 2003
Industrial Dispute – Order of the Labour Tribunal – Punishment of workman byemployer out of proportion to the alleged misconduct – Lack of evidence tosupport the alleged offences at the domestic inquiry.
In the absence of the Manager, the respondent (“the workman”) issued a gatepass to one Subasinghe who was stopped at the gate by the security guard onthe ground that the said pass did not indicate the reason for leaving thepremises: whereupon the workman abused the security guard. This was thefirst offence alleged against the workman. The second charge against him wasthat he had allowed the removal of a spare wheel by a person who was issuedwith another gate pass instead of a tyre. After a domestic inquiry the appellant(“the employer”) terminated the services of the workman.
The Labour Tribunal held that the termination of services was unjustified andgave the workman Rs.90,000/- as compensation being nine months salary.
Even though there was an element of blame that can be apportioned tothe workman in his attitude towards the security officer, there was nojustification for termination of services of the workman as such punish-ment was totally out of proportion with the alleged misconduct.
There is no evidence led before the tribunal that the workman wasinstrumental in permitting the removal of a spare wheel or a tyre fromthe premises as charge 2 seems to suggest or acted fraudulently in thatregard. In any event the conduct of the workman alleged in charge 2 didnot constitute misconduct warranting dismissal.
In all the circumstances of the case it is not fit to interfere with the find-ings of the Labour Tribunal and the High Court that the termination ofservices was unjustified.
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APPEAL from the judgment of the High Court.
Ikram Mohamed. P.C.with S.Jayawardena for appellant.
R.K.S. Suresh Chandra for respondent.
September 24, 2003JAYASINGHE, J.
The applicant-respondent-respondent hereinafter referred to 1as the respondent was charge sheeted by the respondent-appel-lant-petitioner hereinafter referred to as the appellant on two countson 09.10.1996, to viz.
Abusing/reprimanding a security officer who was on duty atthe gate when carpenter Subasinghe sought to leave thepremises on a motor bicycle bearing No.138-2380.
(The appellant alleged that the security guard had stoppedthe said Subasinghe since the gate pass issued by therespondent did not indicate the reasons for leaving the 10premises; that when an employee wishes to leave thepremises he is enjoined to obtain a gate pass and since themanager of department was not available, Subasinghe hadobtained only the gate pass from the respondent.)
Authorising a spare wheel to be taken out of the premiseswithout permission. (It was also alleged that though the gatepass had been issued in respect of the removal of a tyre,what had in fact been sought to be removed was a sparewheel.)
Since the respondent failed to refute the charges preferred 20against him the appellant determined the conduct of a domesticinquiry after which the respondent was found guilty of the chargesset out above. The appellant says in view of the fact that therespondent could no longer be permitted to exert influence prejudi-cial and subversive of discipline within the establishment the appel-lant terminated the respondent's services by letter dated18.10.1996.
Hettigoda Industries v Wijesurendra
Being aggrieved by the said termination the respondent filedan application in the Labour Tribunal on the basis that his serviceshad been unjustly terminated and sought relief and redress in the 30form of reinstatement with back wages or compensation. Theappellant filed answer denying that the termination was unjustified.After inquiry the learned President delivered order holding the ter-mination of the respondent’s services was unjustified and grantedthe respondent compensation in a sum of 90,000/- being ninemonths salary.
The appellant appealed to the High Court of the WesternProvince. At the hearing before the High Court appellant com-plained that the learned President failed to examine and/or consid-er the gravely prejudicial consequences which might emanate from 40having to maintain in service an employee who is an “inveteratewrongdoer” and who is an undesirable example to the rest of thework force; that he failed to take cognizance of the fact that therespondent had totally disregarded the stipulated instructions andprocedures and had violated the same notwithstanding the fact thatthe respondent had been served with written instructions; erred inholding that the termination was unjustified in as much as thelearned president had already conceded that the warning letter ‘R7’and the attitude of the respondent towards the security officerdemonstrated indiscipline on the part of the respondent; that in any soevent the compensation awarded was excessive in the circum-stances.
The High Court however took the view that even though therewas an element of blame that can be apportioned to the respon-dent, there was no justification for termination of services of therespondent as the punishment meted out on the respondent wastotally out of proportion with the alleged misconduct. The learnedHigh Court Judge also took the view that as regards the 2nd chargethe appellant had failed to establish any fraudulent intent on thepart of the respondent in attempting to remove the said tyre and 60that there had been no follow up action by the appellant regardingthe alleged misconduct.
I have carefully considered the submissions of counsel. I aminclined to agree with the learned High Court Judge that termina-tion of services of the respondent is out of proportion with the
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alleged misconduct. I have also perused the documents reliedupon by the appellant to substantiate the appellant's claim that therespondent was an “inveterate wrongdoer.” However it appearsthat none of the documents relied upon by the appellant constitutean allegation of wrong doing involving moral turpitude. The allega-tion that the respondent is an “inveterate wrongdoer'’ is insufficientin the light of the documentation relied upon by the appellant.
It is relevant to mention that there is no evidence led beforethe tribunal that the respondent was instrumental in seeking toremove a spare wheel or a tyre from the premises as charge, No.2seems to suggest. As a matter of fact the identity of the person whoremoved the spare tyre has not even been established with anycertainty except that the security guard De Mel in cross examina-tion had stated that the spare tyre was sought to be taken out by adriver, named Christy. No serious attempt has been made by theappellant before the Labour Tribunal to establish charge No.2against the respondent. The evidence of the security guard has notbeen led on the basis that the respondent has committed an act ofmisconduct.
Further it can never be said that the misdescription of thetyre/wheel on ‘R2’ constitutes misconduct warranting dismissal inthe absence of any follow up action by the appellant as observedby the learned President of the Labour Tribunal. In any event ‘R2’was later amended after the security at the gate refused passageout of the premises. Misdescription of ‘R2’ therefore cannot consti-tute a breach of discipline.
Respondent when he gave evidence was not cross-examinedon ‘P2
It is also relevant to mention that the appellant invoked thejurisdiction of the High Court on the basis that the petition and affi-davit filed in that court related to the abuse by the respondent inrespect of the 2nd charge when in fact the abuse complained of, onthe evidence, was when Subasinghe sought to leave the premises.Due to this defect the appellant could not have succeeded in theHigh Court and the petition of appeal would have been dismissed ifthe respondent brought it to the notice of the Learned High CourtJudge.
scHettigoda Industries v Wijesurendra
Taking into consideration all the circumstances of the case I donot see it fit to interfere with the findings of the Labour Tribunal andthe judgment of the learned High Court Judge. Appeal is accord-ingly dismissed with costs.
S.N. SILVA, CJ I agree.YAPA, J.- I agree.